BRH19 v Minister for Immigration
[2020] FCCA 1516
•11 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRH19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1516 |
| Catchwords: MIGRATION – Protection (subclass 866) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: Craig v State of South Australia (1995) 184 CLR 163 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 |
| Applicant: | BRH19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 144 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 9 June 2020 |
| Date of Last Submission: | 9 June 2020 |
| Delivered at: | Perth |
| Delivered on: | 11 June 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the first respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 144 of 2019
| BRH19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is a citizen of Malaysia. He arrived in Australia on an Electronic Travel Visa on 26 September 2016 (Court Book (“CB”) 41).
On 23 November 2016, the applicant applied for a Protection (subclass 866) visa (the “visa”) (CB 1-37). The applicant’s claims for protection can be summarised as follows (CB 30-34):
a)the applicant is a Shia Muslim. Most Malaysians are Sunni Muslims. Shias have always been treated unlawfully;
b)the applicant is afraid that if it is discovered that he is Shia, he will be caught and persecuted according to Sunni law. His friends have advised him not to tell anyone he is Shia (including the police) because he will be jailed; and
c)the applicant has been threatened by his neighbours that if he continues to practise as a Shia he will be handed over to the authorities.
On 23 March 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the protection visa (CB 38-61). The delegate was not satisfied that the applicant faced a real chance or a real risk of serious or significant harm if he returns to Malaysia.
The applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 30 March 2017 (CB 62-63).
The applicant attended a hearing before the Tribunal on 25 July 2018 (CB 70-75). That hearing was abandoned shortly after commencing because it was determined that the interpreting services provided to the applicant were poor.
The applicant then attended a second hearing on 17 August 2018. That hearing was also adjourned because of poor interpreter services (CB 82-87). In any event, the applicant gave the Tribunal a police report and news articles that addressed issues faced by Shia Muslims in Malaysia (CB 88-98).
On 17 January 2019, the applicant sent the Tribunal a transcript of a WhatsApp discussion between the applicant and an individual referred to as Z.
The applicant attended a further hearing before the Tribunal on 14 March 2019 (CB 105-106). The Tribunal made an oral decision at the end of that hearing that affirmed the delegate’s decision not to grant the applicant the visa (CB 114).
On 18 April 2019, the applicant filed an application for judicial review in this Court pursuant to s.476 of the Migration Act 1958 (Cth). In order to be successful in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is six pages long and spans 31 paragraphs. The Minister’s written submissions filed 29 May 2020 accurately summarise the Tribunal’s decision. The Court adopts those submissions as its own. With some additions, they provide as follows.
At [1]-[7], the Tribunal set out the background to the application detailing when the applicant arrived in Australia, the delegate’s decision, the applicant’s various appearances before the Tribunal and the applicant’s identity.
The Tribunal then summarised the applicant’s claims for protection (at [8]). It noted that it had asked the applicant if he wished to change or add anything to his claims. The applicant indicated that he did not wish to change or add anything (at [9]). The Tribunal read to the applicant the delegate’s summary of his claims. The applicant confirmed that this summary was correct (at [10]-[11]).
The Tribunal then indicated to the applicant that the delegate’s record of country information corresponded with what was in the most recent country information (at [12]).
The Tribunal then noted that it had raised concerns with the applicant about his credibility and the credibility of his claims (at [13]).
The Tribunal went through these concerns and detailed the applicant’s responses to these concerns (at [14]-[21]).
The Tribunal identified the following inconsistencies in the applicant’s evidence and issues regarding his credibility, as follows:
a)his Form C indicated that he had not travelled to another country besides Australia in the last 30 years but his passport showed extensive international travel. The Tribunal found that the applicant’s explanation (that he had limited English and that a friend had helped him fill in the form) was inconsistent with the information provided at question 102 of his Form C (at [14]);
b)in response to the Tribunal’s suggestion that the applicant’s explanation that he had limited English was inconsistent with the written answers in his application, the applicant stated that he was told what to write. It was noted, however, that at other times the applicant had said that the application was correctly completed but that he had not checked the boxes. This, the Tribunal found, raised further questions about the credibility of his answers in the application (at [15]-[16]);
c)the applicant’s repeated return visits to Malaysia raised questions about the credibility of his claims. His explanation that he was searching for a place to live where he would not be persecuted was not accepted. The Tribunal noted the numerous times he had returned to Indonesia. The Tribunal recorded that, when it determined that the applicant did not have a subjective fear of harm because he had made repeated return visits to a country in which he feared harm, it did not have to go further with its analysis (at [17]-[18]);
d)the applicant’s evidence at hearing regarding his residential history in Malaysia was inconsistent with that provided in his application (at [19]). The Tribunal raised concerns regarding the applicant’s claim to be Shia, noting that he had studied at a state sponsored Islamic university in Islamic studies, had been employed and had no documented advocacy for Shias in Malaysia. Other inconsistencies were also noted (at [20]); and
e)his wife was Sunni and he worshipped at a Sunni mosque in Perth (at [21]).
The Tribunal then referred to evidence that the applicant had raised at the hearing on 14 March 2019 that he had been harassed by a mob of Sunnis with machetes (at [23]). The Tribunal noted a number of concerns it had with this claim. This included a concern the applicant had embellished this claim and that it was of “late invention” (at [24]).
At [25]-[26], the Tribunal stated as follows:
25. I also asked why you would leave your wife without protection in Malaysia, in your hometown, when it would be known, under the circumstances you described, that she was married to someone who, in Malaysian terms, would have been regarded as “Haram”. The only instances of discrimination or persecution or adverse treatment that you have brought to my attention with regard to your wife, were two documents you provided to the Tribunal on the day of your second hearing, indicating that she had received threats in connection with some form of scam. I note that your wife has reported these to Malaysian police.
26. There is nothing before the Tribunal to suggest that this is in any way connected to the claims that you have made for protection. I further note that in your evidence to the Tribunal today at the hearing, you advised the Tribunal that your wife actually visited Australia two years ago to visit with you and returned to Malaysia. Once again, this return to the place where you describe your harassment and victimisation is not consistent with a fear of harm in that country.
The Tribunal found that the applicant’s claims were inconsistent, implausible, lacking in credibility and, ultimately, not genuinely held (at [27]).
As the Tribunal had found that the claims were not genuinely held, the Tribunal concluded that there was no real chance of the applicant facing any harm on return to Malaysia (at [28]). The Tribunal similarly concluded that there was no real risk of significant harm to the applicant if he returned to Malaysia (at [29]-[30]).
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [31]).
Proceedings in this Court
The judicial review application dated 18 April 2019 contains the following “grounds of review”:
1. I made an application for a protection visa.
2. The protection visa was refused.
3. I sought relief through the Administrative Appeals Tribunal.
4. On 14 March 2019, I was given an oral decision telling me the reasons why my protection visa was not granted.
5.I feel that I was not listened to and do not understand why my visa was refused and would like a chance to put forward my side of the situation.
6. I will be seeking to obtain the transcripts from the AAT hearing, so I can prepare.
Despite being given an opportunity to file an amended application, any affidavit evidence (including a copy of the transcript before the Tribunal as referred to in the applicant’s grounds of review) and an outline of written submissions, the applicant did not file any further materials.
The materials before the Court included the judicial review application, correspondence confirming service on the applicant of the Court Book and written submissions from the Minister (marked as Exhibit 1), a Court Book numbering 134 pages (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 29 May 2020. The applicant confirmed that he had a copy of both the Court Book and the Minister’s submissions.
The applicant appeared before the Court without legal representation. He appeared via telephone link. The applicant was unable to utilise the video-conference software the Court had provided, despite instructions on how to do so. Nevertheless, the applicant was able to participate and communicate effectively with the Court by telephone. He was assisted by a Malay interpreter in this regard.
Noting the recent remarks DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that an unrepresented applicant should be given an opportunity to orally explain what they believe the Tribunal “did wrong”, the Court invited the applicant to outline to the Court what errors he thought the Tribunal had made..
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error. It explained that the possible categories of jurisdictional error are not exhaustive and sometime overlap. For decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
e)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that the Tribunal did not “attend” to the applicant’s appeal. The applicant explained that his safety in Malaysia was his main concern and that the Tribunal did not take his submissions or concerns “seriously”. The applicant stressed that his life was at risk in Malaysia.
The applicant’s submissions largely took issue with the merits of the Tribunal’s decision. In effect, the applicant disagrees with the outcome of the Tribunal hearing.
The Court cannot engage in an impermissible merits review and, having assessed the Tribunal’s decision and the evidence before the Tribunal, is satisfied that the Tribunal did attend to the applicant’s case and considered all of his “arguments”. These issues are canvassed in more detail below in relation to the applicant’s grounds of review as articulated.
Consideration
Grounds 1-4 of the judicial review application are not grounds of review. They do not identify any jurisdictional error and merely recite factual matters. Ground 6 simply indicates that the applicant will be providing transcripts of the Tribunal hearings. The applicant has not done so despite being given that opportunity. No error arises in relation to these “grounds of review”.
Ground 5 indicates that the applicant does not understand why the Tribunal refused his visa. The fact that the applicant does not “understand why his visa was refused” does not amount to evidence of jurisdictional error. The applicant also states that he wants “a chance to give his side”. This again suggests the applicant is simply seeking impermissible merits review of the Tribunal’s decision.
Ground 5 does, however, also indicate that the applicant feels that he was not “listened to”. The applicant’s submissions at hearing were that his case was not “attended to” or taken “seriously”. These assertions could imply various errors on the part of the Tribunal (i.e., that the Tribunal failed to consider a relevant consideration, that the Tribunal denied the applicant procedural fairness and that the Tribunal was biased). As such, the Court will consider whether, generally, it can be said that the Tribunal did not “listen to” the applicant or properly review his case.
There is no transcript before the Court. The applicant merely asserts that the Tribunal did not listen. He has not identified anything specific that he says was not listened to. The Court is confined to the Tribunal’s decision and the materials in the Court Book when determining whether the applicant’s claim is founded.
In this matter, it appears that the Tribunal made every endeavour to ensure that the applicant had the proper opportunity to be “listened” to.
The Tribunal abandoned the first hearing because of poor interpretation services. It made efforts to ensure that the applicant was assisted by a male interpreter (as he had requested). When the Tribunal could not obtain a male interpreter, it contacted the applicant to advise him of this. The applicant indicated that he was happy to proceed (CB 118-120).
In its decision, the Tribunal makes several references to the applicant’s evidence and his responses (see [12], [14]-[17] and [19]). Relevantly, the Tribunal notes the applicant’s evidence in relation to the “late claim” about a mob of Sunnis harassing the applicant with machetes (at [23]). The Tribunal’s decision indicates that the Tribunal actively listened to and engaged with the applicant’s evidence and his protection claims. In effect, the only substantive information the Tribunal had from the applicant was in the form of his visa application and the limited evidence he provided at hearing. The Tribunal’s reasons demonstrate that it had regard to the information that was before it.
On the materials before the Court, there is nothing to indicate that the Tribunal did not “listen to” the applicant. To the contrary, the Tribunal appears to have done everything it could do to ensure that the applicant had a real and meaningful opportunity to give evidence, present arguments and have his application determined fairly.
In relation to the submission that the Tribunal did not take his arguments “seriously”, the Tribunal addressed the applicant’s claims and engaged with the applicant’s evidence closely and in detail. To the extent that the applicant refers to his advising the Tribunal that he had travelled or “moved” around, as the Minister rightly submitted the Tribunal referred to these matters at [13] and [18] of its decision. Ultimately, the Tribunal considered that this evidence undermined the credibility of the applicant’s claims to fear harm. It was entirely logical for the Tribunal to find that repeated returns to the country in which the applicant fears persecution undermines a claim that the applicant holds a subjective fear of harm: Nirmaleswaran Somasunthara Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 52. There is no error in this regard.
The Tribunal has properly and appropriately conducted the review and “attended” to each of the applicant’s claims and arguments.
The application is, accordingly, dismissed.
Otherwise
In its duty to the self-represented litigant, the Court has remained astute and alert to the possibility of any jurisdictional error in the Tribunal’s decision that may raise an arguable case: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
It is noted that at [5] the Tribunal states:
The applicant appeared before the Tribunal on two occasions, firstly on 25 July 2018 and second, on 14 March 2019 to give evidence and present arguments. The applicant was not represented by a migration agent in these proceedings. The Tribunal was assisted by the services of an interpreter at both hearings, fluent and accredited in both the English and Malay languages.
This is incorrect. The applicant appeared before the Tribunal on three occasions: 25 July 2018, 17 August 2018 and 14 March 2019. The interpreters on the first two occasions were, also, not accredited. The interpreter on 14 March 2019 was accredited.
The Court has considered whether these oversights or factual errors give rise to any jurisdictional error. It is notable that the length of the hearings on 25 July 2018 and 17 August 2018 were, approximately, three minutes in length and six minutes in length. They were, subsequently, adjourned because of difficulties with the interpreter. On the basis of the short duration and the reason for the hearing being adjourned, the Court is prepared to consider that the error in not identifying the hearing on 17 August 2018 and the level of accreditation are factual errors – not jurisdictional errors. Nothing turns on these errors as the applicant has not put any evidence before the Court to suggest that these mistakes constitute jurisdictional errors.
Further, it is noted that the Tribunal indicates that at the hearing on 25 July 2018 it asked the applicant if he had anything to change or add to his claims. It also read out a summary of the applicant’s claims – which he accepted as accurate (at [9]-[11]). As noted, that hearing was subsequently abandoned due to issues with the quality of the interpretation services.
The Court has considered whether, in these circumstances, the Tribunal’s reliance on the applicant’s responses gives rise to jurisdictional error.
Here, the Tribunal makes it clear (at [12]) that it reminded the applicant of his responses at the hearing on 14 March 2020 (in which there was an accredited interpreter). The applicant did not appear to take issue with the summary when put to him at the second hearing. Further, at the second hearing the applicant did, in fact, raise a further claim. Even if there were some interpretive issues in the hearing on 25 July 2018 (and it is not clear to what extent there were issues of this sort), the applicant was not denied an opportunity to participate in the hearing. Indeed, his conduct in the hearing on 14 March 2020 indicates that there was no practical unfairness to the applicant as he had the chance to again confirm his claims and add or change anything of relevance.
The Court is satisfied that no jurisdictional error otherwise arises on the face of the Tribunal’s decision.
Conclusion
The applicant’s judicial review application fails to identify any jurisdictional error. The Court is otherwise satisfied that no error arises on the face of the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
The Minister also seeks an order that the name of the first respondent be amended to the current title of “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”. An order will be made accordingly.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 11 June 2020
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